Rule2022-21948
Self-Regulation of Class II Gaming
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 18, 2022
Effective
November 17, 2022
Issuing agencies
Interior DepartmentNational Indian Gaming Commission
Abstract
The National Indian Gaming Commission (NIGC) is amending its regulations regarding self-regulation of Class II gaming under the Indian Gaming Regulatory Act. The amendment revises the regulations to address an ambiguity in the petitioning process and clarifies the Office of Self-Regulation's (OSR) role once the Commission issues a certificate. Notably, the amendment: Clarifies the NIGC may issue a final decision on issuing a certificate within 30 days instead of after 30 days; removes the requirement that the director of the OSR must be a Commissioner; enumerates the OSR is the correct party to receive notifications of material changes from self-regulated tribes; expands the deadline for tribes to report material changes to the OSR from three business days to 10 business days; clarifies the OSR will be the office to make any recommendations to revoke a certificate of self- regulation before the Commission; and clarifies that, in any revocation proceeding, the OSR has the burden to show just cause for the revocation and carry that burden by a preponderance of the evidence.
Full Text
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<title>Federal Register, Volume 87 Issue 200 (Tuesday, October 18, 2022)</title>
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[Federal Register Volume 87, Number 200 (Tuesday, October 18, 2022)]
[Rules and Regulations]
[Pages 62984-62987]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-21948]
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DEPARTMENT OF THE INTERIOR
National Indian Gaming Commission
25 CFR Part 518
RIN 3141-AA72
Self-Regulation of Class II Gaming
AGENCY: National Indian Gaming Commission, Department of the Interior.
[[Page 62985]]
ACTION: Final rule.
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SUMMARY: The National Indian Gaming Commission (NIGC) is amending its
regulations regarding self-regulation of Class II gaming under the
Indian Gaming Regulatory Act. The amendment revises the regulations to
address an ambiguity in the petitioning process and clarifies the
Office of Self-Regulation's (OSR) role once the Commission issues a
certificate. Notably, the amendment: Clarifies the NIGC may issue a
final decision on issuing a certificate within 30 days instead of after
30 days; removes the requirement that the director of the OSR must be a
Commissioner; enumerates the OSR is the correct party to receive
notifications of material changes from self-regulated tribes; expands
the deadline for tribes to report material changes to the OSR from
three business days to 10 business days; clarifies the OSR will be the
office to make any recommendations to revoke a certificate of self-
regulation before the Commission; and clarifies that, in any revocation
proceeding, the OSR has the burden to show just cause for the
revocation and carry that burden by a preponderance of the evidence.
DATES: Effective November 17, 2022.
FOR FURTHER INFORMATION CONTACT: Michael Hoenig, National Indian Gaming
Commission; 1849 C Street NW, MS 1621, Washington, DC 20240. Telephone:
(202) 632-7003.
SUPPLEMENTARY INFORMATION:
I. Background
The Indian Gaming Regulatory Act (IGRA or Act), Public Law 100-497,
25 U.S.C. 2701 et seq., was signed into law on October 17, 1988. The
Act establishes the National Indian Gaming Commission (NIGC or
Commission) and sets out a comprehensive framework for the regulation
of gaming on Indian lands.
On January 31, 2012, the Commission published a notice of proposed
rulemaking to promulgate part 518, the procedures controlling self-
regulation. 77 FR 4714 (Jan. 31, 2012). Once promulgated, part 518
established the procedures for the Commission and the OSR to, among
other things, receive, evaluate, recommend, issue, deny, or revoke a
certificate of self-regulation. On September 1, 2013, after initial
publication, the Commission enacted minor revisions to part 518 to
amend certain timelines and an incorrect section heading and reference
to IGRA. 78 FR 37114 (Sept. 1, 2013).
II. Development of the Proposed Rule
On June 9, 2021, the National Indian Gaming Commission sent a
Notice of Consultation announcing that the Agency intended to consult
on a number of topics, including proposed changes to the procedures
controlling self-regulation. Prior to consultation, the Commission
released proposed discussion drafts of the regulations for review. The
proposed amendments are intended to improve the Agency's efficiency in
evaluating petitions for self-regulation, reduce the time it takes to
obtain a certificate of self-regulation, and clarify the Office of
Self-Regulation's functions.
The Commission held two virtual consultation sessions in September
and one virtual consultation in October of 2021 to receive tribal input
on any proposed changes. After considering the comments received from
the public and through tribal consultations, the Commission published a
notice of proposed rulemaking on April 7, 2022, 87 FR 20351. The notice
of proposed rulemaking indicated that comments were due on or before
June 6, 2022. On June 16, 2022, 87 FR 36280, the NIGC announced the
reopening of the comment period until June 23, 2022.
The Commission reviewed all of the public's comments and now adopts
these changes, which it believes will improve the self-regulation
process.
III. Review of Public Comments
The Commission received the following comments in response to the
notice of proposed rulemaking.
Comment: Several commenters approved of the change that clarified
the Commission may issue a final determination for a certificate of
self-regulation within 30 days if no hearing is requested, as the prior
language was ambiguous and potentially left open an indefinite time
period for a determination.
Response: The Commission appreciates the comment and has left the
language in the final rule.
Comment: Several commenters approved of the change from three to
ten business days for tribes to notify the OSR of material changes.
Response: The Commission appreciates the comment and has left the
language in the final rule.
Comment: Several commenters approved that placing the burden of
proof on the OSR in revocation hearings.
Response: The Commission appreciates these comments and has left
the language in the final rule.
Comment: A commenter stated that procedural questions were left
unanswered for Sec. 518.7(f), specifically (1) to whom should the
notice be directed, (2) what restrictions exist to who may send a
notice, and (3) the contents of the notice and what it must include.
Response: The Commission appreciates the comment and intends to
provide clarity on these and other process questions. It does not wish,
however, to codify a process that may change in the future. The
Commission intends to publish guidance for administrative and
procedural matters on its website where it can be updated as needed.
Comment: Numerous commenters expressed concern with the reporting
requirements in Sec. 518.11 and commented that there were unanswered
questions as to what needs to be reported.
Response: The Commission appreciates the comments, and notes that
the only proposed change to the rule pertained to the office the Tribe
or Tribal Gaming Regulatory Authority reports such information. The
Commission believes the scope of what needs to be detailed is
sufficiently covered by the reference to Sec. 518.5, which does
specify criteria that will be considered by the Commission when
deciding to grant a certificate of self-regulation, as well as the
examples given in Sec. 518.11. To the extent that additional guidance
or detail is needed, the Commission will include such information in
future bulletins.
Comment: Several commenters expressed concern that if a
Commissioner is appointed the head of the OSR they would be the
proponent of any case to revoke a certificate before the Commission and
also voting on the revocation. The commenters stated that this would
create an insurmountable conflict of interest.
Response: The Commission has changed the rule to no longer require
that a Commissioner serve as the head of the OSR. That being said,
there is nothing to prohibit the Commission from appointing a
Commissioner to lead the office, and the Commission disagrees with the
commenter's assertion that a Commissioner serving as head of the OSR
would create a conflict of interest. It is not a violation of due
process for the Commissioners to serve both investigatory and
adjudicatory functions. The United State Supreme Court held as much in
the case Withrow v. Larkin, 421 U.S. 35, 51-52 (1975), following the
cases that rejected the idea that the combination (of) judging (and)
investigating functions is a denial of due process. The Court further
stated there is a presumption of honesty and
[[Page 62986]]
integrity in those serving as adjudicators. Moreover, the NIGC is
familiar with such a structure and the dual role of investigator and
adjudicator comes from IGRA itself. Section 2706 of IGRA tasks the
Commission with investigatory and inspection powers, while section 2713
requires the Commission to hear any appeals of a civil fine or closure
order issues by the Chairman. The Commission has long worked under such
a structure. For example, the Chairman makes a determination on a
gaming ordinance and also sits on the panel if it is appealed. And
although there is a presumption of fairness, the NIGC nevertheless has
policies and procedures in place to ensure a fair decision on all
appeals and investigations.
Comment: A commenter requested that if a commissioner is appointed
as Director of OSR that they recuse themselves from participating as a
Commissioner of NIGC in revocation hearings for due process concerns.
Response: The Commission declines to adopt this suggestion for the
same reason as above.
Comment: Several comments were outside the scope of the rulemaking
and related generally to the self-regulation process, the lack of
guidance and the inability of more tribes to participate in the self-
regulation process.
Response: The Commission appreciates these comments and will take
them into consideration for future guidance or amendments to the rule.
IV. Regulatory Matters
Regulatory Flexibility Act
The rule will not have a significant impact on a substantial number
of small entities as defined under the Regulatory Flexibility Act, 5
U.S.C. 601, et seq. Moreover, Indian tribes are not considered small
entities for the purposes of the Regulatory Flexibility Act.
Small Business Regulatory Enforcement Fairness Act
The rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. The rule does not have an
effect on the economy of $100 million or more. The rule will not cause
a major increase in costs or prices for consumers, individual
industries, Federal, State, local government agencies or geographic
regions. Nor will the rule have a significant adverse effect on
competition, employment, investment, productivity, innovation, or the
ability of the enterprises to compete with foreign based enterprises.
Unfunded Mandate Reform Act
The Commission, as an independent regulatory agency, is exempt from
compliance with the Unfunded Mandates Reform Act, 2 U.S.C. 1502(1); 2
U.S.C. 658(1).
Takings
In accordance with Executive Order 12630, the Commission has
determined that the rule does not have significant takings
implications. A takings implication assessment is not required.
Civil Justice Reform
In accordance with Executive Order 12988, the Commission has
determined that the rule does not unduly burden the judicial system and
meets the requirements of section 3(a) and 3(b)(2) of the order.
National Environmental Policy Act
The Commission has determined that the rule does not constitute a
major Federal action significantly affecting the quality of the human
environment and that no detailed statement is required pursuant to the
National Environmental Policy Act of 1969, 42 U.S.C. 4321, et seq.
Paperwork Reduction Act
The information collection requirements contained in this rule were
previously approved by the Office of Management and Budget (OMB) as
required by 44 U.S.C. 3501 et seq. and assigned OMB Control Number
3141-0003.
Tribal Consultation
The National Indian Gaming Commission is committed to fulfilling
its tribal consultation obligations--whether directed by statute or
administrative action such as Executive Order (E.O.) 13175
(Consultation and Coordination with Indian Tribal Governments)--by
adhering to the consultation framework described in its Consultation
Policy published July 15, 2013. The NIGC consultation policy specifies
that it will consult with tribes on Commission Actions with Tribal
Implications, which is defined as: Any Commission regulation,
rulemaking, policy, guidance, legislative proposal, or operational
activity that may have a substantial direct effect on an Indian tribe
on matters including, but not limited to the ability of an Indian tribe
to regulate its Indian gaming; an Indian tribe's formal relationship
with the Commission; or the consideration of the Commission's trust
responsibilities to Indian tribes.
Pursuant to this policy, on June 9, 2021, the National Indian
Gaming Commission sent a Notice of Consultation announcing that the
Agency intended to consult on a number of topics, including proposed
changes to the self-regulation process.
List of Subjects in 25 CFR Part 518
Gambling, Indian--lands, Indian--tribal government, Reporting and
recordkeeping requirements.
Therefore, for reasons stated in the preamble, 25 CFR part 518 is
amended as follows:
PART 518--SELF-REGULATION OF CLASS II GAMING
0
1. The authority citation for part 518 is revised to read as follows:
Authority: 25 U.S.C. 2706(b)(10); 25 U.S.C. 2710(c).
0
2. Revise Sec. 518.2 to read as follows:
Sec. 518.2 Who will administer the self-regulation program for the
Commission?
The self-regulation program will be administered by the Office of
Self-Regulation. The Chair shall appoint a Director to administer the
Office of Self-Regulation.
0
3. Revise Sec. 518.5(b) introductory text to read as follows:
Sec. 518.5 What criteria must a tribe meet to receive a certificate
of self-regulation?
* * * * *
(b) A tribe may illustrate that it has met the criteria listed in
paragraph (a) of this section by addressing factors such as those
listed in paragraphs (b)(1) through (9) of this section. The list of
factors is not all-inclusive; other factors not listed here may also be
addressed and considered.
* * * * *
0
4. Revise Sec. 518.7(f) to read as follows:
Sec. 518.7 What process will the Commission use to review and certify
petitions?
* * * * *
(f) The Commission shall issue a final determination within 30 days
after issuance of its preliminary findings if the tribe has informed
the Commission in writing that the tribe does not request a hearing or
within 30 days after the conclusion of a hearing, if one is held. The
decision of the Commission to approve or deny a petition shall be a
final agency action.
* * * * *
0
5. Revise Sec. 518.11 to read as follows:
Sec. 518.11 Does a tribe that holds a certificate of self-regulation
have a continuing duty to advise the Commission of any additional
information?
Yes. A tribe that holds a certificate of self-regulation has a
continuing duty to
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advise the Office of Self-Regulation within 10 business days of any
changes in circumstances that are material to the approval criteria in
Sec. 518.5 and may reasonably cause the Commission to review and
revoke the tribe's certificate of self-regulation. Failure to do so is
grounds for revocation of a certificate of self-regulation. Such
circumstances may include, but are not limited to, a change of primary
regulatory official; financial instability; or any other factors that
are material to the decision to grant a certificate of self-regulation.
0
4. Revise Sec. Sec. 518.13 and 518.14 to read as follows:
Sec. 518.13 When may the Commission revoke a certificate of self-
regulation?
If the Office of Self-Regulation determines that the tribe no
longer meets or did not comply with the eligibility criteria of Sec.
518.3, the approval criteria of Sec. 518.5, the requirements of Sec.
518.10, or the requirements of Sec. 518.11, the Office of Self-
Regulation shall prepare a written recommendation to the Commission and
deliver a copy of the recommendation to the tribe. The Office of Self-
Regulation's recommendation shall state the reasons for the
recommendation and shall advice the tribe of its right to a hearing
under part 584 of this chapter or right to appeal under part 585 of
this chapter. The Commission may, after an opportunity for a hearing,
revoke a certificate of self-regulation by a majority vote of its
members if it determines that the tribe no longer meets the eligibility
criteria of Sec. 518.3, the approval criteria of Sec. 518.5, the
requirements of Sec. 518.10 or the requirements of Sec. 518.11.
Sec. 518.14 May a tribe request a hearing on the Commission's
proposal to revoke its certificate of self-regulation?
Yes. A tribe may request a hearing regarding the Office of Self-
Regulation's recommendation that the Commission revoke a certificate of
self-regulation. Such a request shall be filed with the Commission
pursuant to part 584 of this chapter. Failure to request a hearing
within the time provided by part 584 of this chapter shall constitute a
waiver of the right to a hearing. At any hearing where the Commission
considers revoking a certificate, the Office of Self-Regulation bears
the burden of proof to support its recommendation by a preponderance of
the evidence. The decision to revoke a certificate is a final agency
action and is appealable to Federal District Court pursuant to 25
U.S.C. 2714.
Dated: September 27, 2022.
E. Sequoyah Simermeyer,
Chairman.
Jeannie Hovland,
Vice Chair.
[FR Doc. 2022-21948 Filed 10-17-22; 8:45 am]
BILLING CODE 7565-01-P
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</html>Indexed from Federal Register on October 18, 2022.
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